Citation Nr: 1301686
Decision Date: 01/15/13 Archive Date: 01/23/13
DOCKET NO. 10-20 322 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The Veteran served on active duty from January 1951 to October 1953.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for service connection for bilateral hearing loss. When this case was previously before the Board in May 2012, it was remanded for additional development of the record. The case is again before the Board for appellate consideration.
The issue of service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board points out this was noted in its May 2012 remand, but it does not appear the AOJ has taken any action on this matter.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Veteran asserts service connection is warranted for bilateral hearing loss due to in-service noise exposure. The record establishes the Veteran served in the infantry and, therefore, the Board concedes he was exposed to acoustic trauma in service.
The Veteran has reported that he was not treated for hearing complaints in service, noting that hearing loss is a gradual process. He also claimed in an October 2011 statement that it was entirely possible he visited doctors in service and that in all probability, they would have told him the ringing in his ears would stop.
An audiogram at a private facility in April 1995 shows the Veteran had a bilateral hearing loss.
By letter dated December 2009, the RO informed the Veteran his service treatment records were not available and he was requested to furnish any such records in his possession. The letter noted the Veteran had indicated he was treated at Hearing Masters from 1982 to 2008, but only some records had been obtained. He was advised to complete a form so the RO could obtain additional records from that medical provider. Subsequently, he submitted the form sent to him by the RO in which he was to provide information concerning his service. He indicated he had served in an infantry division. He listed the name and locations of facilities where he had been treatment during service as "unknown." He did not provide the requested information concerning Hearing Masters.
VA audiometric examinations were conducted in March 2009 and June 2012. Following the examinations, the examiners both indicated that without audiometric data from service, an opinion could not be provided without resort to speculation.
In the May 2012 remand, the Board specifically stated that if an opinion could not be furnished without resort to speculation, the examiner was to explain why this is so, and to note what, if any, additional evidence would permit such an opinion to be made.
An "examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion . . .however, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence." Jones v. Shinseki, 23 Vet. App. 382, 290 (2010).
The Board is obligated by law to ensure that the RO complies with its directives. Compliance by the RO is neither optional nor discretionary. Where the remand orders of the Board is not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). It is clear the examiner, in June 2012, failed to provide an explanation why no opinion was possible without resort to speculation.
The Board regrets any additional delay resulting from this action.
Accordingly, the case is REMANDED for the following action:
1. Send the claims folder to the examiner who conducted the June 2012 VA examination. He should be advised that in-service acoustic trauma is conceded and that private audiometric tests show hearing loss was first demonstrated in 1995. The examiner is requested to furnish an opinion as to whether it is at least as likely as not that the Veteran's hearing loss is related to his in-service acoustic trauma. If he is unable to provide an opinion without resort to speculation, the examiner should explain why this is so and indicate what additional evidence, if any, would permit such an explanation to be made. If the examiner who conducted the June 2012 examination is not available, schedule another examination and have that examiner provide the requested opinion.
In providing the addendum opinion, the examiner should specifically consider that noise exposure during service is conceded. The examiner should note the record includes the following: the Veteran's contentions of continuity of symptoms since 1953; his contentions of in-service treatment for hearing loss complaints between 1951 and 1953; and private treatment records showing a diagnosis of hearing loss since 2001.
2. Following completion of the above, the RO should review the evidence and determine whether the appellant's claims may be granted. If not, he should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration.
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.)
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).